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Lord Rooker: My Lords, I have not finished yet. I am saying that in my view a response in writing, even if it is an interim response, should be in front of the House of Commons when the Bill returns to that House with the Lords amendments. That is only fair because of the major changes that have been made in this House. I shall give way to my noble friend.
Lord Judd: My Lords, I am very grateful to my noble friend for giving way. Does he agree that the advice that he has just conveyed to the House is in itself disturbing? No Minister, of course, would bring any legislation to this House unless there were a statement saying that it was compatible with human rights obligations. Our job in the Joint Committee is to examine that and to see whether it is valid.
Lord Rooker: Yes, my Lords. No Minister would sign the front of the Bill unless he received written advice to the effect that it was compatible. That is the case. I just do not know what the procedure was. The Bill was introduced, it went through Committee stage and Report stage in this House and was recommitted to a Committee so that some amendments could be added. It was not another Bill. I am not sure whether a signature was required because the Bill was that which was presented to Parliament, both to the first House and then to this House. I have never been required to sign to the effect that a particular amendment to a Bill is compatible. On the other hand, the advice that one receives would cover these points. The Committee has a job to do.
Lord Lester of Herne Hill: My Lords, the way in which the Minister has put the point is entirely fair and
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practical and shows his commitment to parliamentary scrutiny. I am sure that in the Commons his words will be read and I am sure that the committee will appreciate what he has said.
Lord Rooker: My Lords, I appreciate that. I am speaking from experience and I am trying to help the Government. We have placed ourselves in a difficult position. I believe that an interim response in writing ought to be made available and I have said that from this Dispatch Box, so that is it.
A noble Lord raised the point about people's changing status once they are in the UK. Persons who have been granted six months' leave or less since entering the UK may not switch into marriage. Those may be people on short-term visas, such as students. Anyone else can switch into marriage if he or she has been granted over six months' leave since entering the UK. However, those provisions apply only to persons marrying British citizens and persons settled here; they do not apply to European economic area nationals exercising treaty rights.
I was asked about Clause 19(3)(c) and who would be exempt. We envisage that persons with settled status in the UK will be exempt under subsection (3)(c). Thus the clause is being left to secondary legislation under the negative resolution procedure, and will be subject to the usual Parliamentary scrutiny procedure. I am not clear whether that answers the point about paragraph 46, which the noble Lord, Lord Lester, asked me about. A note has not winged its way to me, and I shall see if I can get one before we finish tonight, because I can refer to it on another amendment, as I did in our earlier debate on Zimbabwe.
I hope that is a sufficient explanation, that this apology is accepted, that noble Lords will not, therefore, push their amendments to a vote and that, in due course, they will support the amendments I shall move on behalf of the Government.
The Countess of Mar: My Lords, before the noble Lord, Lord Rooker, sits down, could he respond to my question about Rule 284? Is it working properly?
Lord Dholakia: My Lords, I hope the Minister can write to me if he is not able to answer my question. The purpose of a sham marriage is one of non-EEA nationals marrying EEA nationals for the purpose of leave to remain in the United Kingdom. Would the noble Lord, Lord Rooker, agree that there is nothing to stop non-EEA nationals marrying an EEA national in a European country and then coming to this country and exercising their rights here? There is no way you can control that particular situation.
Lord Rooker: My Lords, off the top of my head I think that is correct, but I shall take advice and write to the noble Lord, Lord Dholakia. That was one of the issues raised in our earlier debates.
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I can only repeat the point I made about paragraph 294 at the opening of my speech. As I made clear, the amendment of the noble Countess, Lady Mar, does not assist us in combating marriage abuse when it is undertaken by a non-EEA national marrying an EEA national. As I said, Paragraph 284 of the immigration rules requires the persons applying for leave to remain on the grounds of marriage to a British citizen or persons settled here, to have extended leave to remain in the UK and been granted over six months' leave since the date they were admitted to the UK, or have entered the UK with leave as a fiancé. Of course, that happens up and down the country many times a week, I suspect.
When a person does not meet these criteria, they would be expected to leave. Quite clearly, if we have a position of alleged sham marriages, something is not working in the rules the way they are intended. It may sound like a glib answer to the noble Countess, but that must be the position. Hence, we need these extra powers.
The Countess of Mar: My Lords, the noble Lord, Lord Rooker, will not mind my saying that I think that was a dreadful answer. It does not answer my question.
I am very grateful to noble Lords who have taken part in this debate. We have given the subject an airing, and perhaps the JCHR will be proved right. My instinct tells me that this group of clauses is not a good one. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [England and Wales]:
Lord Rooker moved Amendments Nos. 16 to 19:
"(b) shall be delivered to the superintendent registrar in person by the two parties to the marriage,"
Page 19, line 5, leave out first "the" and insert "his or her"
On Question, amendments agreed to.
Lord Rooker moved Amendments Nos. 21 and 22:
On Question, amendments agreed to.
[Amendments Nos. 23 and 24 not moved.]
Clause 26 [Unification of appeal system]:
Lord Goodhart moved Amendment No. 25:
"( ) If an application under section 103A(1) is brought by a party to the appeal other than the appellant, the appellant's costs—
(a) in respect of the application, and
(b) in respect of the reconsideration,
shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22) (funding of services)."
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The noble Lord said: My Lords, this is a very short point. The provisions of Clause 26 of the Bill relating to legal aid for reconsideration of the original decision of the appeal at the asylum and immigration tribunal are apparently based on the assumption that the application for reconsideration will be made only by an asylum seeker or immigrant. In fact, an application can be made by the other party to the appeal, the Home Office, which may be unsatisfied with a decision in favour of the asylum seeker or immigrant.
The provisions are that legal aid can be granted to an asylum seeker or immigrant only retrospectively. In the case where the asylum seeker has been successful before the tribunal and then the Home Office has obtained an order for reconsideration, it does seem unfair that the asylum seeker, or lawyers, should be entitled to the benefit of legal aid only retrospectively. Having won first time, surely the asylum seeker must be entitled to legal aid to defend his or her position. I beg to move.
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